Swanner v. United States, Civ. A. No. 2517-N.

• Decision Date: 21 November 1967
• Docket Number: Civ. A. No. 2517-N.
• Citation: 275 F. Supp. 1007
• Parties: Jessee E. SWANNER, Wilma S. Swanner, Jacqueline Ann Gibson, a minor three years of age, who sues by and through Jack Gibson, her father and next friend, Susan Renee Gibson, a minor two years of age, who sues by and through Jack Gibson, her father and next friend, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Alabama

275 F. Supp. 1007

Jessee E. SWANNER, Wilma S. Swanner, Jacqueline Ann Gibson, a minor three years of age, who sues by and through Jack Gibson, her father and next friend, Susan Renee Gibson, a minor two years of age, who sues by and through Jack Gibson, her father and next friend, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 2517-N.

United States District Court M. D. Alabama, N. D.

November 21, 1967.

Ira DeMent, Montgomery, Ala., and William A. Oldacre (of Hill, Hill, Stovall & Carter), Montgomery, Ala., for plaintiffs.

Ben Hardeman, U. S. Atty., Montgomery, Ala., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

JOHNSON, Chief Judge.

This case was commenced pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., by the above-named plaintiffs seeking to recover damages for personal injuries and property damage sustained in an explosion of a dwelling house which they were occupying. This Court, having considered the pleadings and the evidence presented at the trial of this matter, now makes the following findings of fact and conclusions of law.

Plaintiff Jessee E. Swanner was employed by the Alcohol and Tobacco Tax Division of the Internal Revenue Service as a "special employee" to aid in the undercover investigation of illicit whiskey operations in Giles County, Tennessee. As a result of information developed in this investigation, indictments were returned against several persons in and around Giles County, Tennessee, including one Ed McGlocklin. As is usually required in this type employment, Swanner has testified against two persons accused of violations of the internal revenue laws and has been subpoenaed, but has not given testimony, in at least two other similar cases. He was also scheduled to give testimony before a federal grand jury in Giles County, Tennessee, on April 25, 1966.

About 11:55 p. m. on April 22, 1966, a bomb exploded under the house at 420 South Goldthwaite Street, Montgomery, Alabama, then occupied by the four plaintiffs. The bomb demolished one side of the house, damaged and destroyed the furniture in the house, and injured all four of the plaintiffs; however, only Wilma S. Swanner was seriously injured. Plaintiffs commenced this action against the defendant United States on the theory that the government had negligently breached its duty to protect Swanner and his family and that it had heedlessly imparted a false impression of safety and lack of danger.

In the course of his duties with the Alcohol and Tobacco Tax Division of the Internal Revenue Service, plaintiff Jessee E. Swanner came into contact with one Ed McGlocklin. McGlocklin was engaged in the production and sale of nontaxpaid whiskey. He had both a general reputation and history of being a man of violence, with whom local law enforcement agencies were unable to cope. On at least one occasion prior to the discovery by the group engaged in the illicit whiskey operation of Swanner's relation with the government, McGlocklin, in the presence of Swanner and another government undercover agent, had stated that he would kill anyone who informed the authorities of his violations of the liquor laws. Subsequent to his discovery of Swanner's role as an undercover agent, McGlocklin, with knowledge that Swanner was residing in the area of Montgomery, Alabama, stated that Swanner would never testify against him. This threat was indirectly communicated to Swanner on April 18, 1965.

Swanner, a previously convicted felon who had served one term in the state penitentiary, was not regularly employed prior to the bombing of his home. His principal source of income at the time was derived from part-time work for A. B.C. Motor Company. This work consisted of repossessing used automobiles on which the purchasers were in default.

The government, through the agents of the Alcohol and Tobacco Tax Division of the Internal Revenue Service, had knowledge not only of the generally dangerous nature of undercover work, but also of the threats made concerning informers generally and Swanner specifically prior to the bombing. Immediately after learning of the threat made by McGlocklin, Swanner called Niles Keathley, the agent in charge of the Nashville office of the Alcohol and Tobacco Division of the Internal Revenue Service. Upon learning from agent Keathley that McGlocklin was at large and being sought by the Alcohol and Tobacco Tax Division of the Internal Revenue Service, Swanner volunteered to come to Tennessee and to act as a decoy to aid in the apprehension of McGlocklin. He was advised not to take this course, that he would be safe from McGlocklin as long as he stayed in Alabama. Swanner also called Tom Allison, the agent in charge of the Montgomery office of the Alcohol and Tobacco Tax Division of the Internal Revenue Service, who also advised him that, in his judgment, he was safe from McGlocklin as long as he remained in Alabama. At no time did Swanner request that agents be assigned to protect him and the members of his family.

The Police Department of the City of Montgomery, Alabama has made, and is continuing to make, a thorough investigation of the bombing. From the physical evidence at the scene, the Police Department has concluded, and this Court finds, that the explosion was an unnatural one and was procured by human agency. Officers of the Montgomery Police Department also testified as to standard police procedure in cases in which knowledge is obtained of a threat to a member of the community. That procedure is to furnish, without request, police protection in the form of a "stakeout" and increased patrol activity in the neighborhood. Upon request, individual officers would be assigned to the person threatened. Swanner, since no such request was made, was without such protection from any agency at the time of the bombing of his house.

Swanner did not own the house in which he was living, but the house was fully insured. At the time of the bombing, Swanner's lessor was in arrears on the payment of his mortgage on the house which he had leased to Swanner, and the lessor had been put on notice that if the deficiency was not made up foreclosure might be necessary.

Jacqueline Ann Gibson and Susan Renee Gibson, granddaughters of plaintiffs Jessee E. Swanner and Wilma S. Swanner, each claim, separately, through their father and next friend, the sum of $5,000 for personal injuries received in the explosion. At the time of the explosion, each of the girls was asleep with one of her grandparents in separate rooms of the house. Their injuries consisted of superficial cuts, scratches and bruises. Neither child required medical attention.

Mrs. Wilma S. Swanner was the most seriously injured of the plaintiffs. She claims the sum of $25,000 for permanent personal injuries and incidental medical expenses. As a result of a serious fracture of the pelvis, she required three weeks of hospitalization and further bed rest at home. When she became ambulatory, she could not walk without the assistance of crutches for a period of some six months. As a result of a severe laceration, which penetrated her left cheek and caused her to lose three teeth, she now has a facial scar on the left cheek. She also has other scars from lacerations on her chin and legs. Mrs. Swanner's skull was fractured, resulting in pain and dizziness accompanied by occasional periods of unconsciousness when she assumes a reclining position or suddenly changes position.

Plaintiff Jessee E. Swanner claims the sum of $26,500 for personal injuries, loss of services of his wife, and damage to personal property. The damage to personal property consisted of furniture and other household goods of the value of $1,500 which was destroyed, or damaged beyond repair, in the explosion. His personal injuries in the explosion proper consisted of minor cuts, scratches and bruises. He suffered serious cuts of both feet and of both hands in an attempt to extricate his wife from the rubble. He does not claim any medical expenses in connection with the emergency treatment of these cuts. Prior to the accident, Mrs. Swanner was able to do all their housework without assistance. She can no longer do such work, and Mr. Swanner has had to either do the work himself or employ outside help.

This Court has jurisdiction of the parties and the subject matter of this action. 28 U.S.C. § 1346(b). It has been previously determined by this Court, in ruling on the motion of the United States for summary judgment, that the United States may be liable under the Federal Tort Claims Act for its failure to provide police protection where, as here, the decision not to provide such protection is made by an agent of the United States acting within the line and scope of his employment. It has also been previously determined, in connection with the government's motion for summary judgment, that the failure to provide protection was...